We’re All Going to Die

We knew the world would not be the same. A few people laughed. A few people cried. Most people were silent. I remembered the line from the Hindu scripture, the Bhagavad-Gita. Vishnu is trying to persuade the prince that he should do his duty and, to impress him, takes on his multiarmed form and says “Now I am become Death, the Destroyer of Worlds.” I suppose we all thought that, one way or another.

These were the words that J. Robert Oppenheimer used to describe the reactions of those who were present at the Trinity test site in New Mexico on the morning of July 16, 1945 when the first nuclear-fission bomb was detonated. One of the issues that had been considered when that bomb was being developed was whether there was any potential for catastrophic results, far beyond the level of devastation that was in fact witnessed when similar fission bombs were deployed a month later in Japan. Edward Teller, who would go on to promote the development of a fusion bomb, had raised the possibility that the temperatures produced by the explosion of a fission bomb would be sufficient to ignite the atmosphere, and thereby result in global catastrophe. The scientists involved in the Manhattan Project to develop the bomb concluded that such an occurrence was, in fact, impossible, and proceeded with the development of a device that still in many ways haunts the political environment of the planet.

More recently, a similar kind of concern has been raised with a different scientific project and in a different context. The Large Hadron Collider (LHC), recently built by the European Organization for Nuclear Research (CERN), is the most powerful particle accelerator ever constructed at a cost of some US$9,000,000,000. Expectations for its potential to shed light on some very fundamental questions in physics about the nature of matter are high, and of much interest in their own right. In particular, scientists hope that the LHC may eventually resolve one of the most important questions about the generation of mass through the Higgs mechanism by producing and detecting the so-called Higgs boson. Experimental identification of the Higgs boson has the potential for largely confirming the Standard Model of elementary particle physics.

But despite its scientific importance — or perhaps because of that importance — there have been a number of legal challenges to operation of the LHC, based mostly on the suggestion that the energies involved might produce small black holes that could swallow up the Earth. It is the stuff that makes up the plots of science-fiction thrillers and while those at CERN are hopeful that the accelerator could produce mini black holes, the danger has been dismissed by particle physicists because the black holes would survive only for very small fractions of a second.

The fact is that the various lawsuits have uniformly failed and on March 30, 2010, the LHC achieved record energy levels in colliding protons together without a hint of catastrophic results. This week, on June 28, 2010, CERN announced that the LHC had doubled the previous record for particle-beam collisions — it was previously held by the Tevatron at Fermilab in Illinois. The LHC is still running at only half the energy it was designed for, but it is hoped it will run at its full energy by sometime in 2013.

What does this say about the intersection of law and science? Scientists complain all the time that lawyers and judges lack the technical expertise to make decisions about which view of the science is correct. Indeed, they feel that far too often, legal decisions are made on the basis of an incorrect, biased, and alarmist view of the science. At the same time, the public is often distrustful of scientists because it believes that scientists get too caught up in the intellectual interest of a project, diminishing legitimate public concerns because they dislike interference in what they are doing. Robert Oppenheimer himself acknowledged this fervor that scientists can have in talking about the Manhattan project: “When you see something that is technically sweet, you go ahead and do it and you argue about what to do about it only you have had your technical success. That is the way it was with the atomic bomb.”

So what are judges who are confronted with such issues to do? To handcuff scientists in response to ignorant and irrational fears is clearly too drastic, especially given the historic benefits that science has had to Mankind. But it is equally too drastic to give scientists an unfettered license to investigate whatever they wish in the name of advancing knowledge when the risks are real and legitimate.

The best answer at the moment is to adhere to the centuries-old principles that have developed in deciding cases. Require that the challengers demonstrate the legitimacy of their concerns and apply balancing tests that evaluate the real level of risk — knowing that what we are talking about is risk and not certainty — against the potential benefit. This is precisely what the judges in the various lawsuits against the LHC have done, finding that the risk identified by the challengers is remote enough and the benefits provided by the LHC are great enough that it would be a mistake to shut it down.

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.